U.S. Supreme Court to decide fate of Tennessee immigrant

A case that is expected to clarify the legal rights of immigrants facing deportation and other defendants who receive bad legal advice is before the nation's top court on Tuesday and it's rooted in Tennessee.

The case involves a Memphis restaurateur, born in South Korea, who pleaded guilty to a drug charge based on the incorrect advice from his lawyer that he would not face deportation. As a result, the man, Jae Lee, has been in custody facing deportation for more than seven years, according to legal filings.

Lee has not returned to South Korea since coming to the U.S. in 1982. Lee was a legal resident but never obtained citizenship.

His team of lawyers, including Patrick McNally of Nashville and John Bursch of Michigan, argues in court filings the top court should overturn Lee's conviction, thus stopping the threat of deportation. A ruling from the U.S. Supreme Court, which hears the case Tuesday, will clarify a patchwork of lower court rulings on what a defendant, who receives ineffective legal advice, must prove before an appeals court changes the outcome of a case.

McNally said the case could have broad implications beyond the realm of immigration.

"At the very heart of this case is the question, when a lawyer gives erroneous advice to his client, and his client relies on it, this case answers what kind of prejudice you have to show in order to get relief from the mistakes made by your trial lawyer," he said.

For months since the U.S. Supreme Court agreed to hear the case, the legal community in Tennessee has been abuzz with the achievement. Bursch will argue the case, but it's McNally's first to be accepted by the justices, who hear only about 1 percent of legal issues presented to them. The argument comes nearly two years after a contingent of lawyers from across the state argued their way to Washington, D.C., as part of the case that eventually legalized same-sex marriage nationwide.

After graduating high school in New York City, Lee moved to Memphis. With his parents' help — they ran a coffee shop in Manhattan — he opened Mandarin Palace Chinese Restaurant, and then a second restaurant, both in the Memphis area.

As his business flourished, so did Lee's use of ecstasy, court records say. In 2009 and acting on a tip, law enforcement officers searched his home and reportedly found 88 ecstasy tablets, records say. Lee hired Larry Fitzgerald, a lawyer, to represent him in the subsequent drug dealing case.

There is no dispute that Lee got bad advice when he was told by his lawyer that, if he accepted a plea agreement, he would not be deported. In fact, his crime was on a list of federal offenses that lead to mandatory deportation.

Legal precedent established by the 1980s case Strickland v. Washington says to have a conviction overturned based on ineffective assistance of counsel, a person must show two things: they received bad legal advice and were harmed by that advice.

The legal question the U.S. Supreme Court will consider Tuesday deals with the second prong.

Lee argues that non-citizens face a unique consideration during the criminal justice process: Whether to take a plea or go to trial when it's not just prison time on the line, but also deportation. Prior courts have called deportation “the equivalent of banishment or exile."

Sometimes, Lee argues, going to trial or potentially facing a longer prison term is a better option because it means staying in the United States longer.

The U.S. government, in court filings arguing against Lee, says that the outcome of the criminal case, whether it ended in a plea or after trial, would have been essentially the same because of overwhelming evidence. Because of that, the government says, Lee can't show enough harm done to reverse his conviction.

That court agreed with the government's argument and said that Lee had not shown he was prejudiced by the lawyer's bad advice and thus his conviction was valid.

Judge Alice M. Batchelder, an appointee of President George H.W. Bush, wrote the opinion. Even in ruling against Lee, Batchelder expressed concern about an issue that has been hotly debated in recent months.

"In reaching this conclusion, we should not be read as endorsing Lee’s impending deportation," she wrote. "It is unclear to us why it is in our national interests — much less the interests of justice — to exile a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small-time drug offense. But our duty is neither to prosecute nor to pardon; it is simply to say 'what the law is.'"

Reach Stacey Barchenger at 615-726-8968 or sbarchenger@tennessean.com or on Twitter @sbarchenger.